Note: The final sentence of accused 1 was remitted to one of 5 years imprisonment. There was no printed finding and sentence by the court.

Charge:

Committing a War Crime in that they in Siam and Burma between 1 April 1945 and 31 August 1945 being members of 29 Mixed Independent Infantry Brigade concerned with the building and maintenance of a road from PRACHUAB KHERIKHAN in Siam to MERGUI in Burma, were, in violation of the laws and usages of war, concerned in the ill-treatment of a party of British, Australian and Dutch prisoners of war employed on the said road resulting in the death of many of the said prisoners of war and bodily suffering to many others of the said prisoners of war.

Facts relating to the charge:

The construction of a road running between Prachuab Kerikhan in Siam and Mergui in Burma was planned by Commander 18 Area Army, Lt/Gen. Nakamura at the end of 1944. 29 Ind. Mixed Bde. Commanded by the first accused was given the task of construction which he allotted to 160 Ind. Inf Bn. under his command.

After completion of the road, 1000 P.O.W.s, many of whom were sick, were sent from Nakon Pathom Hospital on the orders of the Comd. 18 Army to maintain the road under Command of 160 Bn. The men had to march through the jungle for four days and they suffered greatly.

On 30 April the 2nd accused commanding 161 Ind Bn. of 29 Bde took over the work and command of the P.O.W. who were employed in various camps along the road on maintenance.

The 4th accused was commanding No. 2 Coy, 162 Bn. from 12 May and employed P.O.W. on maintenance and transport of supplies from 27 May - 15 July.

The eighth accused joined the said No. 2 Coy on 13 June and employed P.O.W. from 23 June- 25 July.

The 9th Accused was liaison N.C.O. between the P.O.W. group and the Terui Unit. His task was to report to the group and to obtain medical requirements for the men.

One Prosecution witness in Court and a number of affidavits testified to the bad living conditions of the P.O.W.s and the lack of food, clothing and medicines. They stated that the employment of men on heavy work, together with the other factors mentioned, particularly the practice of dosing sick men and forcing them to work, resulted in the high death rate, 270 men dying out of 1000.

The 8th and 9th Accused were identified as having beaten P.O.W.s. It was also stated that the 9th accused did not carry out his duties properly in that he stole or sold medicines intended for the use of the P.O.W.

Accused handling of the charge:

Most of the accused denied their involvement in the alleged charges.

Main issues of the case raised by prosecution and defence:

Joint responsibilityThe defence argued that the accused were being charged jointly for the alleged crimes, when they did not set out deliberately and collectively to commit a crime. The relation was that of issuing and obeying of orders between a superior and a subordinate, and when the factors of time and place differed in the case of each, the individual accused was not to be held responsible for the result as a whole.

The prosecution did not address this point in their closing address, probably because they felt that all the accused were collectively and individually responsible for the alleged charges.

ConditionsThe defence discussed the facts relating to the case as outlined above and related them to the question of responsibility. They argued that attention should be paid to the following two points:

The work imposed upon the POWs was not that of construction, involving heavy labour, but of maintenance, work of a light nature.

As a great number of sick men were taken over by the Terui Unit, some terribly deteriorated in health from the beginning. However, it could not be said that those accused who superintended the maintenance work on the road, were wholly responsible for the deaths which subsequently occurred. The maintenance work was, for example, filling in hollows caused by traffic, and indeed neither severe nor concessive as had been alleged. The work was of such a nature that it demanded neither long hours nor great physical strength.

With regard to the responsibility of the Unit; namely the accused, the defence argued that they did not employ the POWs at their pleasure. In this situation overseas, officers authorized by the War Minister made the decision regarding the employment of the POWs. The employment of the POWs in the Southern Region was a matter for the C-in-C of the Southern Expeditionary Army, and No. 18 Army ordered the Watari Brigade to use the POWs on the sanction of the Southern Expeditionary Army. It must not be assumed that the responsibilities of the Unit towards the POWs it employed, entailed everything down to the last detail, and that the POWs were entirely in the care of the unit.

The unit's responsibility towards the POWs was as follows:

Regarding medical treatment of the POWs, POW medical officers should be sent.

An officer or NCO should be sent from the Camp for liaison duties.

Should sick cases occur among the POWs, they should be sent back to the Camp without delay.

No. 160 Bn. should furnish the POW Camp with a report every 10 days, concerning the condition of the POWs.

The unit employing POWs is to handle matters relating to accommodation, food supplies, and guard, and the POW Camp will deal with medical supplies and wages.

Several more conditions in the camp were dealt with by the defence:

Labour: The work was for the purpose of maintaining and repairing the road, and was generally not of severe nature.

Accommodation: The barrack was made of bamboo and palm-leaves. In this respect both the Japanese soldiers and POWs suffered some discomfort. Owing to a shortage of men, the Japanese Army was unable to repair the huts of the POWs.

Food supply: The POWs received the maximum quantity of food available for them. Evidence had been given that both they and the Japanese troops received extra supplies of meat when available. Transport difficulties, however, contributed greatly to the deterioration in the food situation. The Camp was at certain periods practically inaccessible.

The prosecution argued according to the conditions at length as well.

Accommodation: The POWs were cramped in so badly that there was no room to move anywhere. This was supported in affidavits and witness accounts.

Food: There was very little food and they were killing anything they could to supplement the rations they had.

Clothing: The Japanese never supplied the POWs with clothing while on the Mergui Road.

Work conditions: The prosecution submitted that the work was excessive. Also, the POWs were employed in prohibited work, and a definite breach of the Geneva Convention. Labour was very much insufficient for the road to be properly maintained, and, as such, the prosecution contended that working hours could not be reasonably lessened to maintain the road properly. Therefore, working hours were never lessened at any time the prisoners were there.

The prosecution maintained that there was a mass of evidence by doctors and prisoners giving their opinions with regard to the insufficiency of medicine and the reasons for the sickness were most authentic. They argued that the death and sickness that occurred were due to the employment of sick men in heavy work, starvation diet, lack of clothing, entire lack of medical supplies, equipment and hospital facilities, and everything. These conditions all contributed to the deaths that occurred in the camps.

Responsibility of the individual accusedThe defence argued that all the accused involved were innocent and each did not have any individual responsibility. Defence arguments used for the accused involved:

The accused were only acting according to superior's orders, particularly in the employment of POWs and their involvement in the road project. They also could not take any responsibility for the lack of rations as they were only following orders in that case as well.

Accused 1 was against the employment of POWs for this work and it would be better to employ native coolies but they were forced to make use of the POWs.

The accused made efforts to improve the conditions of the POWs, in areas such as the accommodation and food of the POWs and medical supplies.

The respective duties of each accused were outlined by the defence to show their involvement in this case.

The accused maintained that the POWs were only involved in light, maintenance work and not any heavy labour.

The accused were misunderstood by the POWs in terms of their good intentions towards the POWs.

The prosecution also discussed the individual responsibility of each accused.For accused 1, they argued that he was opposing the POWs working on the road not because he was sympathetic but because the work could not be completed according to the wishes of the Army Commander. The prosecution reminded the court again that by employing POWs they had committed a war crime. For accused 2, they argued that the statements by the defence with regards to food and medical supplies being provided to the POWs was contradicted by the statements of the prosecution witnesses and by the number of deaths among the POWs. For accused 3, 4 and 5, they argued that they were all associated with this crime jointly.

In conclusion, the prosecution submitted that the defence had failed to realize that the deaths were not only the result of excessive work, but resulted from a combination of excessive work, inadequate food, lack of medical supplies, accommodation, lack of any kind of protective or other clothing and employment in a very unhealthy country.

D.J.A.G.'s review:

The D.J.A.G. advised confirmation of the proceedings based on the evidence presented in court. However, with regard to accused 1, who he said was shown to have made every effort, within the limits of discipline to use labour other than POW labour, he suggested for consideration that 5 years of his sentence be remitted. This suggestion was applied and therefore the final sentence passed for accused 1 by the G.O.C. Singapore District was 5 years imprisonment.